ELRC451-2324NW
Award  Date:
03 June 2024

Case Number:
ELRC451-23/24NW
Commissioner: Simon Beesnaar
Date of Award: 03 June 2024

In the ARBITRATION between

PEU obo Lekalakala, MG
(Union/Applicant)

And

DEPARTMENT OF EDUCATION - NW
(Respondent)

Union/Applicant’s representative: Klaas Mohlatlola – Union Rep (PEU)
Union/Applicant’s address:

Telephone: 063 689 2649
Telefax:
E-mail: klaasmohlatlole@gmail.com

Respondent’s representative: KMM. Keetile – Labour Relations Practitioner
Respondent’s address: Department of Education – NW Province

VRYBURG

Telephone: 076 154 1717
Telefax:
E-mail: keetile44@gmail.com

PARTICULARS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration matter between PEU on behalf of MG. Lekalakala, the applicant and the Department of Education (NW), the respondent.

2. The referral is in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995 as amended (herein referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.

3. The arbitration hearing was scheduled on 26 February 2024, 16 May 2024 and concluded on 17 May 2024 in Vryburg.

4. The applicant appeared in person and was represented by Mr Klaas Mohlatlole from PEU (Union Rep). Mr BLD. Tutubala was in attendance as Union Observer. The respondent was represented by Mr. KMM. Keetile in his capacity as Labour Relations Practitioner.

5. The parties prepared and submitted into evidence bundle of documents which were accepted as what they purported to be. The applicant’s bundle is referred herein after as Annexures “A and B” while the respondent’s bundle is Annexures “C - G”.

6. The proceedings were conducted in English and were manually and digitally recorded.
ISSUE TO BE DECIDED
7. It must be determined whether the respondent’s conduct was tantamount to unfair labour in terms of section 186(2)(a) of the LRA, after the applicant, Mr Lekalakala was demoted on allegations of misconduct.

8. The applicant challenged both the substantive and procedural fairness of the demotion. On the substantive fairness, it was submitted by the union that a demotion was not an appropriate sanction arrived at by the Presiding Officer (PO). The PO misdirected himself by considering irrelevant evidence and he was biased.

9. The procedural challenge related to the fact that the applicant was neither consulted nor counselled prior to the demotion. Further that he was not properly inducted after his appointment as Departmental Head (HOD).

BACKGROUND TO THE DISPUTE

10. The applicant started his career in 2014 as an Educator. On 1 November 2019, he became the HOD for languages at Kamogelo Primary School at a notch of R 405 867.00 per annum.

11. The applicant was charged and found guilty on five (5) counts of misconduct, as it appears in the notice of disciplinary hearing. He was subsequently demoted following a formal enquiry on 30 August 2023. He was also transferred to Mamusa Primary School. His current notch is R 318 648.00 per annum.

12. He lodged an appeal with no success. He then referred the matter to the Council in terms of section 186(2)(a) of the LRA, alleging unfair labour practice relating to demotion for conciliation. Conciliation failed to resolve the dispute and he requested that the matter be resolve through arbitration.

13. Finally, should the demotion be held to have been unfair, to reinstate the applicant as HOD with retrospective effect.
SUMMARY EVIDENCE AND ARGUMENT
Applicant’s evidence –
14. Mr MG. Lekalakala started by explaining how moderation is done. That it is mediating the work done by Educators. That included quality assurance and whether the Educator met the standard required. He indicated that there is no policy at the school as to how moderation is done. Procedurally, they would sample the scripts after the Educator has given tasks to the learners.

15. They must make sure that all the scripts are marked before submitting them for moderation. His role was just to moderate how learners have achieved the tasks. He sampled 10% of the scripts and checked average between low and high marks obtained. The learners’ names sampled in E1 were those he ticked. He was satisfied after his verification and variations he made, put the date stamp and signed the mark sheet.

16. He did not sample Katlego Mthethwa’s script which was allocated a mark but was later discovered that it was unmarked. He should therefore not be held accountable for false marks entered of the learner concerned. On the 2nd count he also maintained his innocence that he did what he was expected to do in monitoring LAIP. Further that LAIP was not his sole responsibility as HOD.

17. On the incomplete file of Mr Qinisa, he also maintained that it was not his fault but that of Mr Qinisa himself who failed repeatedly to follow an instruction. He kept on asking for extension instead of making sure that the file is up to date and he warned him of consequence management. He committed to complete the file but instead he was “ducking and diving”.

18. Count 4 according to him is vague and confusing and the work was overwhelming. He worked under tremendous pressure and huge work load but nonetheless he did his work exceptionally well. He failed to understand the charge that he failed to control the work of teachers and learners. On the last count of reporting late on duty, it was his testimony that every time when he came late would report that to the Principal with SMSs but she blocked him. He would also apologise but not sure if that was accepted.

19. Ms. Kedibone Kgosiemang is currently Deputy Principal at Mamusa Primary School. In 2021 she was Deputy Principal at Kamogelo Primary School and worked with the applicant who was HOD – Languages foundation phase. There were other HODs at the time. They were all reporting directly to the Principal.

20. She explained how moderation is done by HODs. 10% of sampled scripts are moderated and that’s exactly what the applicant did. It was later discovered after the applicant moderated the scripts, that there was one learner who was allocated a mark but her script was unmarked. He checked only those sampled. The subject teacher must make sure that all scripts are marked.

21. On LAIP she maintained that’s the responsibility of everyone. That the applicant did his best under the Covid-19 conditions to implement LAIP although there were shortcomings. On the incomplete file allocated to Qinisa she was not sure what happened after the Principal called both the applicant and Qinisa to explain why the file was no up to date. She concluded that she was aware that at times the applicant would arrive late at the school. Further that he was not the only one reporting late.

22. Mr Gaolatlhwe Tladi was also at some point around 2021 a HOD at Kamogelo Primary School. He worked with the applicant. The applicant became HOD after he was already appointed. He also explained what is done during moderation. That 10% of the scripts is sampled by the HOD for the purpose of post-moderation. They check whether the marking guidelines were used correctly.

23. The other 90% of the scripts should be checked for correctness by the subject teacher. He also maintained that LAIP is the responsibility of the collective and not an individual. He maintained that he also at times arrived late at school and he would sent SMS to the school principal who at times would say she did not receive his messages.

Respondent’s evidence –

24. Ms Kenosi Elizabeth Motsebe is the principal at Kamogelo Primary School. She started in January 2000 to date. She initiated disciplinary charges against the applicant. Five counts of misconduct were levelled against him. At the SMT meeting when, the HOD Lekalakala was presenting his report, it was discovered that while he signed off the mark sheets post moderation, one of the learner’s (Katlego Mthethwa) script was unmarked but she was allocated a mark.

25. The applicant could not explain why he signed for false marks entered on the mark sheet. When the teacher submits the scripts, the HOD knows they must count that with the teacher making sure that the marks on the mark sheet collate with that on the learner’s script. The applicant admitted that he did not count the scripts with the teacher. While 10% of the scripts are sampled for moderation purposes, the HOD is still responsible for the correctness of the other 90% not sampled.

26. While he knew he was responsible for LAIP at the school, he failed to do that. Page 25 shows that it was his responsibility. The documents A7-15 that he presented as evidence that he monitored LAIP was not signed and invalid. Those were not submitted at the time when he was supposed to report on it. He was supposed to sign the report and submit it. That did not happen.

27. On count 3, the time table was changed and Mr Qinisa was appointed to take over from the Deputy Principal, Ms Kgosiemang. It was the applicant’s responsibility as HOD to ensure that the file was properly audited when handing it over to Mr Qinisa from the previous teacher. That did not happen as expected. Qinisa struggled to get all the monitoring instruments as they were missing. While they agreed on time frames to update the file, that still did not happen.

28. Mr Motlele was the Deputy Principal who resigned in 2021 due to frustration. He submitted that it was difficult to report because the applicant was not doing his work properly to make it possible for him to report. He concluded that the applicant was making it a habit of coming late to work and difficult to control that behaviour.

29. Mr Lungile Justice Qinisa was allocated subject EFAL-Grade 4 when the time table was changed. He took over from the former Deputy Principal, Ms Kgosiemang. When he received the file there were outstanding documents from 1st and 2nd term. He informed his HOD, the applicant. He kept on discussing the issue with Ms Kgosiemang but that file was never updated. It was the HOD’s responsibility to ensure that the file was up to date when it was handed over to him.

30. Mr Johannes Masekoameng was the PO of the disciplinary enquiry. A1 are his finding on the matter of the applicant. The applicant was charged on 5 counts of misconduct and he considered the Principal, Ms Motsebe’s testimony. After the scripts were sampled, there were marks allocated to a learner whose script was discovered unmarked. He considered that while the teacher marked the scripts, the HOD has a duty to monitor correctness of the marks entered.

31. There were marks allocated to a learner and strangely her script was not marked but the HOD signed the mark sheet to confirm that all scripts were marked. There was also evidence that in terms of LAIP there were activities that the applicant was expected to draw a plan and implement. That did not happen. The applicant was also responsible to audit the file that was handed over to Mr Qinisa. There was evidence pointing to the fact that he failed to ensure that the file was up to date.

32. He was also a regular late comer and there was evidence to that effect put to him to be considered. He did not show any sign of remorse and during the disciplinary proceedings, he was disrespectful even towards the school principal. He considered the fact that he was HOD, his job description, and that he failed to perform according to the 5expectations.

ANALYSIS OF EVIDENCE AND ARGUMENT
33. This is a referral in terms of section 186 (2) (a) of the LRA. The relief sought by the applicant should I find in his favour is that the respondent be ordered to reinstate him as HOD retrospectively.

34. In determining the dispute between the parties, I considered the provisions of the LRA, and the Employment of Educators Act, of 1998 as amended (“the EEA”). I also considered other relevant prescripts and arrive at the finding here after.

35. The LRA entitles employees to institute action against an employer for what is termed ‘unfair labour practice’ in terms of section 186 thereof. One of the matters where an employee is entitled to take action because of the unfair conduct of the employer is in relation to demotion. “…..in law demotion could also mean a reduction or diminution of dignity, importance, responsibility, power or status even if salary, attendant benefits and rank are retained”.

36. The demotion complained about by the applicant is a result of a disciplinary enquiry and a sanction arrived at by the PO. Section 18(3) of the EEA states that – (3). ‘If, after having followed the procedures contemplated in subsection (2) , a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of …..’ He was charged and found guilty on five (5) counts of misconduct. It is the applicant’s submission that the demotion was unlawful and unprocedural.

37. The applicant and two other witnesses testified. He stated that he was neither consulted nor counselled when the demotion as a sanction was imposed. I noted that in Chibi v MEC: Department of Corporative Governance and Traditional Affairs (Mpumalanga Provincial Government) and another (J 1764/11) [2011] ZALCJHB 89; (2012) 33 ILJ 855 (LC) (handed down on 1 November 2011) it was held that there was no need to consult with an employee, nor to obtain agreement on the sanction before it can be imposed.

38. Further that he was not properly inducted after his appointment as HOD. That was rebutted by the Principal, who testified as the respondent’s first witness. She stated that she sent the applicant for induction. He was inducted by the Deputy Principal, Ms Kgosiemang and that testimony remained unchallenged. Ms Kgosiemang was the applicant’s second witness and she did not mention that the applicant was never taken through an induction process. It is important to note that the applicant became HOD in 2019 and he was demoted four years later. It is inconceivable why induction only raised now.

39. On the first count the applicant submitted that during moderation he sampled only 10% of the scripts and that is what he checked and signed for. It is common cause that while one learner, Mthethwa Katlego was awarded a mark (see E2), it was discovered that her script was unmarked.

40. In his sworn statement (F1 paragraph 2), the applicant conceded that he might have entered the mark by a mistake. He further stated that ‘it might have emanated from a common human error’. Mistake and misrepresentation or falsification must be treated carefully, considering that the elements that need to be proved for mistake are not the same as those for misrepresentation/falsification and vice versa. Mistake may refer to the situation where a party acts while under an incorrect impression regarding some or other facts.

41. In order for a party to prove successfully the existence of a mistake, they must establish two important elements, namely materiality and reasonableness. The reasonable requirement places a much stricter burden on a party who alleges that they were mistaken as to a particular fact. That’s the “reasonable man” test. The question to be asked therefore is whether a reasonable person in the same shoes as the applicant alleging mistake could be mistaken about the same facts.

42. A party who claims that they were under a misapprehension as to a particular fact or facts must plead such and must indicate that the mistake was reasonable. He must show grounds indicating that the mistake was reasonable and thus that any other reasonable person could be mistaken about what they claim to have been mistaken about.

43. In the case of Botha v Road Accident Fund (463/2015) [2016] ZASCA 97; 2017 (2) SA 50 (SCA) (2 June 2016) the court cited with approval the following statement of Christie in Christie and Bradfield - Christie’s the Law of Contract in South Africa 6ed (2011) 329-330, “however material the mistake, the mistaken party will not be able to escape from the contract if his mistake was due to his own fault. This principle will apply whether his fault lies in not carrying out the reasonably necessary investigations before committing himself to the contract, that is, failing to do his homework; in not bothering to read the contract before signing; in carelessly…….”.

44. If courts do not meticulously apply their minds to the facts before them, it could be easy for anyone to raise a defence of mistake with the aim of escaping liability. Taking it a step further, a party may even act negligently and claim that they were mistaken owing to the misrepresentation, thus aiming to escape liability. The “dirty hands” principle holds equally true for the concept of mistake. In other words, a party cannot conduct themselves in an unethical fashion and thereafter raise “mistake”.

45. The principle of caveat subscriptor states that “he who signs must be aware” (see George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)). I am not persuaded that it was an innocent mistake when the applicant signed the mark sheet with falsified marks of the learner. The applicant was the HOD and he should have been more circumspect. The possibilities are if that is not thoroughly checked as what happened in the circumstances of this matter that could become a regular occurrence.

46. That in my view is unacceptable and a serious breach. Based on this charge alone, I am not persuaded as the applicant submitted that the respondent’s conduct is unfair in demoting him. I am not called upon to determine the appropriate sanction, but just to determine whether the demotion is tantamount to unfair labour practice as envisaged in section 186(2)(a) of the LRA.

47. On the second count, the applicant submitted that he was made a sacrificial lamb and a target when LAIP cannot be considered the responsibility of an individual person, but that of the collective. Contrary to his submission, the Principal indicated that was his responsibility as HOD for the languages at the school and that makes sense to me. While certain tasks are done by the collective that does not take away the basic functions of management.

48. It is the responsibility of management to see that essential activities are done efficiently and effectively. Managers make sure the necessary changes are implemented and that unity and integrity of the entire process is maintained. The applicant was part of School Management Team (SMT) and it has been established that he was responsible for LAIP. In my view the buck stops with someone in this regard. It cannot be left to the collective.

49. There was another issue about the incomplete file that was transferred to Mr Qinisa from another Educator. It was the applicant’s responsibility to audit that file and to ensure that it was up to date but that did not happen within the time frames that was agreed upon. The applicant’s only defence was that he spoke to Mr Qinisa so many time about the file but in his own words, Qinisa was “ducking and diving and did not do what he was instructed to do”. While that was the case he did not prove there was consequence management. He failed to discipline him. There can only be one reason why he could not discipline him. It was not Qinisa’s responsibility to audit that file, but the HOD’s.

50. While there are two more charges levelled against the applicant on this matter, I do not see it necessary to go through them individually as with the first three counts. For the purpose of brevity, as indicated in paragraph 46 above, I am not persuaded that the sanction of demotion imposed by the respondent on the applicant is tantamount to unfair labour practice as envisaged in section 186(2) (a) of the LRA. These last two counts in my view will not make any difference on my findings.

51. I also took cognizance of the Labour Court’s decision in IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017). It was held that the law requires the employee to show the existence of the conduct or decision complained of. It follows that if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that is the end of the matter.

52. I considered both the applicant and the respondent’s testimonies and conclude that while he submitted that his demotion was unfair labour practice, that allegation has not been sustained. I am not persuaded in the circumstances that his demotion is tantamount to unfair labour practice as envisaged in section 186(2)(a) of the LRA.

53. Having regard to the full conspectus of all relevant facts and circumstances of the matter, I make the award hereafter –

AWARD
54. The applicant, Mr MG. Lekalakala failed to prove on a balance of probabilities that the demotion imposed on him by the respondent as a disciplinary sanction, is tantamount to unfair labour practice as envisaged in section 186(2)(a) of the LRA.

Name: SM. Beesnaar
(ELRC) Arbitrator


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